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The frustrated DPP and her band of lazy prosecutors — Part 1

Tanya Burke

Sunday, October 15, 2017

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I am sure the title of this post will grab the attention of many. Some people will read further because they are seeking confirmation of their belief that Jamaican prosecutors are all simply lazy and are the sole or main reason for the backlog of cases in our courts. Others will read because they are (or were) prosecutors, they know just how hard they work (or worked), and are shocked that I, a former prosecutor, could agree with the categorisation. For those seeking ammunition against our prosecutors, this is not the article to provide fuel for your fire.

I write in defence of all the hard-working prosecutors attached to the often-lambasted Office of the Director of Public Prosecutions in Jamaica and its operations about which the public knows so little yet has so many negative comments to make.

The negative perception of prosecutors held by the Jamaican public is largely due to the lack of information regarding the true nature of their work and the circumstances under which they work. It is indeed a catch-22 situation. Our prosecutors are so burdened by case preparation and court appearances that there is little to no time to even attempt to give the Jamaican public a glimpse into their lives. The director, Paula Llewellyn, does her best, but she is one person and certainly one overworked public servant.

Finally, Madam DPP has had enough!

So, as a former prosecutor, and now that I have some time on my hands, I come to the defence of Jamaican prosecutors, past, and present. Hopefully, this will set the record straight, because I am tired of the ignorant ramblings of non-lawyers and non-prosecutors who haven't the faintest idea of what exactly is involved in being a prosecutor.

The Jamaica Observer carried an article headlined 'I'm Frustrated!' on September 19, 2017, in which DPP Paula Llewellyn 'called out' the Ministry of Finance on what I can only describe as, its foolishness!

For years I have listened to Llewellyn's diplomatic statements in the public arena concerning the needs of her office, even in the midst of unjustifiable criticism and calls for her resignation, for which I hold an invisible roll of tissue to my ears. I have been wondering how long it would take for her to get to this stage where she would finally call a spade a spade and, to quote Delcita, “Mek who nuh like it go use it dig a grave.” (Jamaican for allow those who are displeased go and dig a grave.)

When I read the article I was pleased!

ZOSO and other laws

It takes a real idiot not to realise that if crime rates increase (and people are in fact being charged) more prosecutors, judges, police officers, support staff, and courtrooms are necessary. The Government cannot expect to implement laws like the Law Reform (Zones of Special Operations) Special Security and Community Measures Act (2017) or ZOSO without simultaneously ensuring that courts, prosecutors, police, and prison officials have adequate human and physical resources to handle the increased numbers of defendants.

Look at the statistics. There are 861 cases listed before the Home Circuit Court alone this term, 128 of which are new cases. There is no indication how many of the 861 cases are retrials, which means some prosecutor would be required to read through hundreds of pages of transcripts from the previous trial(s).

I would like to know which DPP critic has a better solution for putting a dent in that list in one term of the Circuit Court without causing injustice to victims and their families. In fact, I would like to know which one of Paula's non-lawyer critics could manage to mention (not prosecute) the 128 new cases only. Not one!

A typical day in the life

When a prosecutor appears in court the court and the country expects the prosecutor to be prepared, but the public, and even some lawyers, have no clue what it means for a prosecutor to be prepared. So let me give you an insight into the life of a prosecutor with the hope that all future criticisms can be levied fairly and in context.

The prosecutor must read all cases listed before the court s/he is assigned. This entails reading all witness statements, depositions, medical reports, DNA reports, ballistic reports, forensic reports, post-mortem examination reports, accident reconstruction reports, and any other relevant reports on the file. If the case happens to be a retrial, the prosecutor is also required to read all transcripts on the file, some of which are hundreds of pages long and some cases may have had several retrials.

A criminal file is never one page long. How many of you can read several hundred pages in one night, analyse law and facts, recall facts and discrepancies, and cross-examine witnesses the next day? This is what the prosecutor has to do in every case, and you say prosecutors are lazy, huh?!

The workload reduced me to tears

I remember breaking down in tears one Thursday night at another prosecutor's home. I had just finished a three-week circuit with a difficult judge. My colleague had taken home my cases for the following week. I was so exhausted. When I saw the pile of over 80 cases (including two retrials) that I had to prepare for Monday I just cried. I hardly slept that weekend. Nonetheless, I had no choice but to be ready on Monday morning.

The prosecutor must read the endorsements on the file to know what has transpired in court in each case. A diligent prosecutor will have the following information at his or her fingertips in the event the judges ask: the number of trial and/or mention dates; number of times the Crown requested an adjournment or the matter was not reached; the number of times the defence requested an adjournment; whether a warrant was ever ordered for the accused; number of times the complainant and other witnesses were present; and who was present on the last court date.

Remember the 861 cases on the Home Circuit list this term? Let's say only the 128 new cases were listed for the opening day. (And let's be clear, this is never the case! There are always matters on the mention list from the previous Circuit).

The two prosecutors who took those 128 new cases to court must endorse every single file after court adjourns. Endorsements are crucial because that is how prosecutors communicate with each other. If the prosecutor who took the file to court today leaves the office tomorrow any prosecutor who picks up the file must be able to give the court a perfect account of what transpired on the day the former prosecutor took the file to court. Imagine having to endorse 64 files in detail after work hours plus prepare your cases for trial the next day.

Avoiding trial by ambush

The prosecutor must ensure that matters that are set for trial are, in fact, ready for trial on paper. Judges are justifiably impatient with prosecutors who request adjournments in cases on the trial list that are not ready for trial on paper. So the prosecutor needs to be knowledgeable enough to know what kind of evidence is required for each case on the mention list to be ready for trial.

The average person assumes that if the defendant is arrested and placed before the court the matter should be tried promptly. Unfortunately, because prosecutors are not involved in the investigative process and police officers are not lawyers — and even if they are, they may not have the experience of prosecutors — oftentimes statements submitted to the DPP's office are insufficient in law. This is where the ODPP gets a lot of cussing, but if you do not have a case, no matter how outrageous the circumstances, you do not have a case.

In other instances, the file may have been submitted without original copies of required reports or the prosecutor may learn from the defence that the police has information in their position that they have withheld from the prosecutor, who has a duty to disclose all the evidence in their possession. Possession extends to information in the possession of the police. In those situations, the matter will be adjourned for the file to be completed and disclosure made to avoid “trial by ambush”.

Prosecutors must know which witnesses are crucial. The public may think everybody who was present when a crime occurred is a witness and should be called as a witness, but a person is only a witness if that person can give admissible evidence of facts relevant to the case. The prosecutor must also assess each witness statement on file and determine whether it is necessary to call all the witnesses who gave statements to the police. There may be 10 witnesses and the prosecutor can opt to call on one.

The prosecutor must know who all the witnesses are, the sequence in which they must be called, the various items of evidence to be entered through each witness, the nature and purpose of the evidence each witness is to give, and the hearsay or other inadmissible evidence recorded in the police statement that must be excluded from the witness' testimony.

Knowing which witness to call is critical for the drafting of the indictments and Notices to Adduce. If the witness' name does not appear on either the indictment or a Notice to Adduce the witness cannot be called to testify unless the Indictment is amended or a Notice to Adduce is prepared and served.

The prosecutor must draft indictments and Notices to Adduce evidence for service on the defence, where applicable, for all matters on the trial list. A trial cannot start without an indictment. One of the true tests for the preparedness of a prosecutor is whether there is a settled indictment on the file.

So, Mr Critic, do you know what an indictment is or the information that must be included in one? Do you know which witnesses names are placed on the back of the indictment as opposed to a Notice to Adduce and why? A prosecutor does not have the luxury of ignorance. He or she must know.

The prosecutor must prepare and provide the judge and police with a copy of the list of cases before the court each day. The court list provides the police and judge with the names of all parties in each case. This is the list the police use to shout out the names of defendants and witnesses when it is their time to enter the court.

Readiness for trial also depends on the availability of witnesses, which is the purview of the police. The prosecutor must prepare witness lists to enable the court detectives and/or police assigned to the DPP's office to contact the investigating officer in each case, whose job it is to contact the witnesses.

So when people begin to curse the prosecutors for cases that they are compelled to offer no evidence or proffer a nolle prosequi in due to the unavailability of witnesses it does not mean the prosecutors are lazy. It is not the function of the prosecutor to cold call each witness, and I would not encourage prosecutors to do so either.

Deliberately misleading the court

When I was a prosecutor, I used my personal phone to call witnesses at my expense. This was before we were issued with Blackberrys. In the process, several witnesses told me the investigating officers had never told them of their court dates. In those instances, the investigating officers were deliberately misleading the court with stories about being unable to locate or contact the witness or the witness is not interested.

In some instances, the police officers were simply being lazy or acting in collusion with the accused to have the case dismissed. In one case a police officer perjured herself because she was transferred out of the parish and did not want to keep returning to court in that parish.

In another case, I intended to offer no evidence against the accused. (And, by the way, prosecutors make these decisions without consulting the director.) When I realised the number of adjournments the Crown had received due to the absence of the victim I knew I could not reasonably request another adjournment in court the next morning.

I decided to call the complainant's phone number on the file and she answered. She explained she had never ever been asked to attend court. I told her to come to court the next morning as the matter was scheduled for trial. When she arrived I hid the complainant from the investigating officer who boldly told the court the complainant cannot be found and she no longer resides at the address provided and he has no telephone number for her.

At this point, I called the complainant into court and the blood left his face. I started the trial, which ended in a conviction. I felt proud of myself for thwarting the injustice to both the complainant and the accused as a result of the misrepresentations of the police officer to the court.

My sense of pride soon turned to disappointment and disbelief when, acting on the advice of the then DPP, I submitted my claim for calls I made to witnesses. Say my total phone bill was $1,500 (I don't recall the actual figures), calls to witnesses accounted for, say $300. Someone from the ministry contacted me months later and told me they were not honouring my claim and rudely asked me, “How can I be sure I was not claiming for calls made to my friends?” Does it make sense for me to submit my phone bill for a total of $1,500 and claim $300 inclusive of calls to my friends? Thanks to that officer at the ministry I never called another witness or police officer at my expense again.

Ideally, the prosecutor should meet with the witnesses in their trial matters, in the presence of a police officer, to explain the court's procedure and have the witness refresh his or her memory from the witness' statement. (Ask yourself when does a prosecutor find time to do this? Most times it is done the morning of court, if at all.)

In an environment with a lower crime rate, this can easily be achieved, but the volume of cases to be prepared by Jamaican prosecutors makes it virtually impossible. Plus, meeting witnesses is a double-edged sword. Witnesses have testified of things that never occurred during the interviews that bring the prosecutor's conduct under suspicion as a part of their scheme to assist the defendant.

We want justice! We need justice!

Prosecutors are best advised to visit the crime scene prior to trial. When do we do that? On weekends or if we got a day out of court or court adjourns early or not at all. I remember being assigned to Portland Circuit and I had to check out of the hotel on Friday and drive back to Portland on Saturday to visit the crime scene because that was the only time available for the witness to meet with me. Following the meeting, I had to drive back to Portland on Sunday to check into the hotel. Who cares? Prosecutors get paid travelling allowance, right?

The prosecutor must know the law and conduct himself/ herself as a minister of justice. S/he must know the relevant laws applicable in each case as well as legal authorities. Knowledge of the law is critical at every stage of court proceedings. The prosecutor must listen carefully to the judge's summation to be able to inform the judge of any omissions or clarifications necessary.

As a minister of justice, the prosecutor is duty bound to disclose to the court any legislation or case law that goes against the Crown's case. It sounds hard, doesn't it? The prosecutor may believe, like every DPP critic, that a defendant is as guilty as sin, but the prosecutor's job is not to secure convictions by any means necessary; the prosecutor's job is to pursue justice, which sometimes means acquittals. Not every person accused is guilty of the crime alleged and prosecutors must always be mindful of that.

I invite the ODPP critics to ask themselves what kind of prosecutors do they prefer to have? Does Jamaica want prosecutors who are willing to collude with the police or others to have innocent people convicted just because the public thinks the person accused is guilty? Because you can easily fall in that net at any time. Or does Jamaica want prosecutors who pursue justice in accordance with our laws? I am happy we have the latter!

Damned if they do, damned if they don't

The prosecutor must know whether or not to accede to a case submission, enter a nolle prosequi, or oppose bail. The Jamaican public would love to hear that all “newsworthy” cases result in convictions; however, that is not always the case. There are circumstances where the law just isn't on the prosecutor's side and the prosecutor must know.

The worst thing for a prosecutor to do is to flog a dead horse just to avoid the onslaught of criticism they anticipate. The prosecutors' backs have to be as broad as their director's and they must accept that the public will be outraged either way. Prosecutors are well aware it is a waste of tax dollars and judicial time to pursue or oppose no-case submissions when the law clearly is against them. When prosecutors operate like this they lose the respect of judges and their colleagues. It's damned if they do and damned if they don't, because if a full trial results in the jury returning a verdict of acquittal then they would have wasted tax dollars on the trial when another matter could have been tried.

In Part 2, we'll look more resources, those awful judges, and prosecutors in near-brothels.

Tanya S E Burke is an attorney-at-Law, former prosecutor, and stay-at-home mom.

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